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Court of Criminal Appeal 15 October 2002

Regina v Malek

[2002] NSWCCA 424

Also reported as (2002) 134 A Crim R 423
Drugs
SENTENCING KNOWING WHAT WAS HAPPENING CORRECT LEVEL OF SENTENCING.

Citation: Regina v Malek [2002] NSWCCA 424
Court: NSW Court of Criminal Appeal
Date: 15 October 2002
Judges: Smart AJ; Hidden J

Background

The appellant was a man in his late fifties who worked as a receptionist, bookkeeper, cashier and manager at a Bankstown brothel operated by a third party. The brothel was the site of a sustained drug supply operation, in which prostitutes employed there were directed to purchase heroin and cocaine exclusively from the operator. The appellant's duties included maintaining time sheets, recording "subs" (advances drawn against earnings), holding drug sale proceeds for safekeeping, and facilitating telephone communications between the operator and the drug seller on the premises.

The appellant was convicted after trial in the District Court on two counts of knowingly taking part in the supply of prohibited drugs: heroin (not less than a commercial quantity) and cocaine. His admitted knowledge of the drug supply operation, combined with his administrative role in the system that supported it, formed the basis of the Crown's case. The sentencing judge imposed concurrent terms of 8 years (non-parole period 4 years) and 7.5 years (non-parole period 4 years).

The appellant sought leave to appeal against those sentences in the Court of Criminal Appeal, contending they were manifestly excessive given his relatively peripheral role and his significant personal circumstances.

  • Whether the sentencing judge made factual errors in assessing the appellant's role and motivation that infected the sentencing exercise
  • Whether the sentences imposed were manifestly excessive having regard to the appellant's actual degree of participation and his subjective circumstances
  • What the correct sentences were upon re-sentencing

Decision

The Court of Criminal Appeal found that the sentencing judge had overstated the appellant's role and erred in assessing his criminality. In particular, the judge misquoted the appellant during sentencing, characterising him as motivated by greed when the evidence did not support that conclusion. The judge also described the wage the appellant received as "quite a handsome wage," which the Court found overstated the position, and stated that the offence was of "the worst type," a characterisation the Court viewed as unsupported given that greater degrees of involvement in drug supply operations had been seen in other cases.

The Court noted that, while the appellant undeniably had knowledge of the drug supply operation and facilitated it through his administrative functions, he was not an indispensable link in the chain of supply. He received no percentage of drug proceeds and was not found to have been the driving force behind any aspect of the operation.

Turning to subjective circumstances, the Court gave significant weight to the appellant's age (60 at the time of sentencing), his lengthy gap in offending (no relevant prior convictions since 1987), the serious adverse health effects he had experienced in custody, and the impact of a first custodial sentence at his age. The Court also noted his role as carer for an elderly mother and that he was unlikely to re-offend. These factors, combined with the errors in the original assessment of his criminality, led the Court to conclude the original sentences were manifestly excessive and to re-sentence the appellant.

Orders Made

  • Leave to appeal against sentence granted
  • Appeals allowed; original sentences quashed
  • On count 1 (knowingly take part in supply of not less than the commercial quantity of heroin): 6 years imprisonment commencing 10 April 2001, with a non-parole period of 2 years 9 months expiring 9 January 2004
  • On count 2 (knowingly take part in supply of cocaine): 5 years imprisonment commencing 10 April 2001, with a non-parole period of 2 years 6 months expiring 9 October 2003 (concurrent with count 1)

Key Takeaways

  • Where a sentencing judge misquotes or mischaracterises an offender's evidence in a material way, that error can infect the entire sentencing exercise and justify intervention on appeal.
  • A finding that an offence is "of the worst type" requires a basis in the evidence; the Court of Criminal Appeal declined to accept that characterisation where the offender's participation, while sustained, was administrative and not central to the supply operation itself.
  • Distinguishing between the degree of involvement of different participants in a drug supply operation is critical to correct sentencing: receiving no share of drug proceeds and functioning in a support capacity is materially different from directing or executing the supply.
  • Powerful subjective circumstances, including advanced age, first-time custody, deteriorating health in gaol, and an extended offence-free period, can substantially reduce an otherwise significant sentence even for a sustained offence.
  • The Court of Criminal Appeal confirmed its role in re-sentencing de novo where errors in the original sentencing exercise are established, with fresh evidence of post-sentence circumstances taken into account.

Legislation and Cases Referenced

Legislation: None cited in the judgment.

Cases: None cited in the judgment.